Volume 98 Issue 2 Dickinson Law Review - Volume 98, 1993-1994

1-1-1994

The Comparative Negligence Defense in Pennsylvania Dram Shop The Comparative Negligence Defense in Pennsylvania Dram Shop

Suits: Personal Responsibility for All Patrons Suits: Personal Responsibility for All Patrons

Leonard MacPhee

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Recommended Citation Recommended Citation Leonard MacPhee, The Comparative Negligence Defense in Pennsylvania Dram Shop Suits: Personal Responsibility for All Patrons, 98 DICK. L. REV. 307 (1994). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol98/iss2/7

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The Comparative Negligence Defense inPennsylvania Dram Shop Suits: PersonalResponsibility for All Patrons

I. Introduction

Pennsylvania has not traditionally recognized the defense ofcontributory negligence in dram shop suits. Taverns which serve apatron in violation of the Liquor Code' and are sued for subsequentinjuries to the patron or a third party cannot have their liabilityapportioned, despite the negligent acts of the patron. Generally, if aplaintiff establishes that a tavern violated the Liquor Code, the tavern isdeemed negligent per se and is held fully liable for any alcohol-relatedinjuries.

With regard to minor-patrons, however, an exception has beencarved out which allows the defense of comparative negligence to beraised in some instances to apportion fault between the tavern and theminor patron. When a tavern violates the Liquor Code by serving aminor, the tavern is deemed negligent per se and is liable for injuriessustained by the minor's consumption.2 The tavern may, however,assert the negligence of the minor as a defense and liability may bereduced accordingly.3 Serving a visibly intoxicated customer, also aviolation of the Liquor Code, is also deemed to be negligence per se,4

but the defense of comparative negligence is not available in this case.,This Comment will trace the development of licensee civil liability

and the availability of the comparative negligence defense to licensees inPennsylvania. Furthermore, this Comment will demonstrate that thedefense of comparative negligence should be available to taverns whosenegligence per se derives from the service of alcohol to visiblyintoxicated customers. Judicial integrity and social policy necessitate thischange. Comparative negligence equitably apportions responsibility andfault between culpable parties. By denying taverns this defense, theysuffer a disproportionate degree of liability in dram shop suits.' The

1. PA. STAT. ANN. tit. 47, §§ 1-101 to 8-803 (1969 & Supp. 1993).2. See infra notes 38-64 and accompanying text.3. See infra notes 65-81 and accompanying text.4. See infra notes 7-24 and accompanying text.5. See infra notes 25-37 and accompanying text.6. Comparative negligence was adopted by the Pennsylvania General Assembly in 1976. Act

of July 9, 1976, No. 152, 1976 Pa. Laws 855 (codified as amended at 42 PA. CONS. STAT. ANN.§ 7102 (1982 & Supp. 1993). For the text of this act and a discussion of the relevance of thischange from contributory to comparative negligence see infra notes 67, 78.

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Pennsylvania courts perceived the wisdom and fairness in allowingtaverns the defense of comparative negligence in suits involving theservice of alcohol to minors. Accordingly, Pennsylvania courts shouldextend this logic and allow taverns to use the defense of comparativenegligence for suits involving the service of alcohol to visibly intoxicatedadults.

II. Historical Background

A. The Finding Of Civil Liability

The Pennsylvania legislature enacted the Liquor Code, or DramShop Act, in 1951.' The Liquor Code regulates and licenses thedistribution of intoxicating liquors by commercial vendors.' It alsoestablishes criminal liability and provides criminal penalties for itsviolation.9 Criminal liability stems from service of alcohol to certaingroups of individuals. In section 4-493 the act specifies five groups towhom the sale of intoxicants is unlawful. Among these are minors andvisibly intoxicated customers. 0

In Pennsylvania a violation of the Liquor Code can give rise tocivil" as well as criminal liability.' 2 The courts have determined thata violation of the Liquor Code is negligence per se. 13 Injured plaintiffsneed only prove that the licensee violated the act and that as a result ofthis violation, they were injured. 14

7. Act of April 12, 1951, No. 21, 1951-52 Pa. Laws 90 (codified as amended at PA. STAT.ANN. tit. 47, §§ 1-101 to 8-803 (1969 and Supp. 1993).

8. PA. STAT. ANN. tit. 47, §§ 4-401 to 4-499 (1969 & Supp. 1993).9. These include fines, imprisonment and suspension or revocation of a liquor license. PA.

STAT. ANN. tit. 47, § 4-494.10. PA. STAT. ANN. tit. 47, § 4-493 (Supp. 1993), states in pertinent part:

(1) For any licensee or the board, or any employe, servant or agent of such licenseeor of the board, or any other person, to sell, furnish or give any liquor or malt or brewedbeverages, or to permit any liquor or malt or brewed beverages to be sold, furnished orgiven, to any person visibly intoxicated, or to any insane person, or to any minor, or tohabitual drunkards, or persons of known intemperate habits.

(emphasis supplied).11. This finding of civil liability was a departure from the traditional common law view where

it was not a tort to provide liquor to "able bodied" persons. Traditionally, it was thought that theconsumption of alcohol was the cause of any subsequent injury. See Herr v. Booten, 580 A.2d1115, 1118 (Pa. Super. Ct. 1990); 48A C.J.S. Intoxicating Liquors § 428, at 133-36 (1981); 45AM. JUR. 2d Intoxicating Liquors § 553, at 852-53 (1969).

12. PA. STAT. ANN. tit. 47, § 4-494 (Supp. 1993).13. For a discussion on negligence per se see W. PAGE KEETON ET AL., PROSSER AND KEETON

ON TORTS § 36, at 227 (5th. ed. 1984).14. See, e.g., Smith v. Evans, 219 A.2d 310, 311 (Pa. 1966); Majors v. Brodhead Hotel, 205

A.2d 873, 875-76 (Pa. 1965); Smith v. Clark, 190 A.2d 441, 442 (Pa. 1963) (violation of § 4-

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Examples of Pennsylvania courts finding taverns liable for violationsof the Liquor Code include Majors v. Brodhead Hotel 5 and Smith v.Evans.'6 In Majors, a man became "exceedingly" drunk at a party ina hotel.' 7 In an attempt to keep him from causing problems with theother guests, hotel staff placed him in the bathroom.'" The man thencrawled out of the bathroom window and proceeded to walk around onthe roof. The man fell off the roof and sustained injuries. 9 He thensued the hotel under the theory of negligence per se. The complaintalleged that the hotel had violated section 4-493(1) of the Liquor Codeby serving a visibly intoxicated person.' The trial court found thehotel liable and the Supreme Court affirmed on appeal.2 The courtrecounted that serving a person who is visibly intoxicated is negligenceper se. In the event that the violation is a proximate cause of the injuryto the intoxicated person, or another, the licensee is liable. 2

In Evans, the Pennsylvania Supreme Court concluded that acommercial licensee could be held liable for damages proximately causedby serving alcohol to a visibly intoxicated minor in violation of theLiquor Code. 3 The court stated that in serving such a person, thetavern violated the law. If the intoxication was a proximate cause of theresultant injuries, then the tavern is liable in tort.'

493(1) by service of alcohol to an intoxicated minor constituted two separate violations, bothconstituting negligence per se); Peluso v. Walter, 483 A.2d 905 (Pa. Super. Ct. 1984) (the serviceof alcohol to a visibly intoxicated customer is negligence per se, bringing absolute liability to thetavern for injuries proximately resulting and the testimony of the tavern owner stating that thecustomer was not visibly intoxicated at the time of sale is not enough to support the tavern owner'smotion for summary judgment); Couts v. Ghion, 421 A.2d. 1184 (Pa. Super. Ct. 1980) (licensedrestaurant could be held liable for injuries sustained by third party proximately resulting from theunlawful sale of alcoholic beverages to a visibly intoxicated patron); Connelly v. Ziegler, 380 A.2d902 (Pa. Super. Ct. 1977) (the service of intoxicants to a visibly intoxicated patron is a violation of§ 4-493(l) and therefore constitutes negligence per se, and a licensee is liable for the death of apatron who fell down stairs as a result of the intoxication); Stewart v. Sutliff, 3 Pa. D. & C.4th 613(1989) (in applying Connelly, 380 A.2d 902, and Evans, 219 A.2d 310, the court stated that a tavernkeeper is liable in tort for violating the law by serving someone who is visibly intoxicated if as aresult of the intoxication the consumer injures themself or someone else. This duty is limited to theperson that is served the alcohol and anyone whom that person may injure. This duty did not extendto the motorist who struck the walking intoxicated patron.).

15. 205A.2d 873 (Pa. 1965).16. 219A.2d 310 (Pa. 1966).17. Majors, 205 A.2d at 875.18. Id.19. Id.20. Id.21. Majors, 205 A.2d at 878.22. Id. at 875-76.23. Evans, 219 A.2d at 311.24. Id. The court went on to state that the fact that the patron was a minor was not enough

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Violation of the Liquor Code has, then, been deemed to give rise tocivil liability. This liability is absolute in that a licensee who is found tohave violated the Liquor Code will be found liable upon a showing ofcausation. Along with a finding of absolute liability, the courts havedenied taverns the defense of contributory negligence.

B. Contributory Negligence Implications

Relying on section 483 of the Restatement (Second) of Torts, theMajors court denied Brodhead Hotel the opportunity to assert the defenseof contributory negligence. 5 The defendant hotel argued that the trialcourt should have instructed the jury on the theory of contributorynegligence.26 The Pennsylvania Supreme Court disagreed with thedefendant and held that the lower court did not err in refusing thisinstruction.27 The Supreme Court followed an earlier Superior Courtdecision in Schelin v. Goldberg' and applied the Restatement (Second)of Torts section 483.29 Section 483 states that statutes enacted toprotect a specific class of persons from their inability to exercise self-protective care are to be treated differently in regard to availabledefenses to the defendant.30 When one of these "exceptional statutes"

to establish liability. Id. Because of the passage of section 4-497, proof of intoxication at the timeof sale was required to find civil liability. Id. For discussion on licensee's liability for service tominor's see infra notes 38-64 and accompanying text.

25. Majors, 205 A.2d at 876. For the text and discussion of the court's application of theRESTATEMENT (SECOND) OF TORTS § 483 cmt. c (1965), see infra notes 29-31 and accompanyingtext.

26. Majors, 205 A.2d at 876.27. Id.28. 146 A.2d 648 (Pa. Super. Ct. 1958). In Schelin, the court held that section 483 of the

Restatement (Second) of Torts should apply in Liquor Code suits. The defendant in Majorsattempted to distinguish the two cases by the fact that in Schelin the patron had arrived at thedefendant's bar already intoxicated while in Majors the Plaintiff became intoxicated while at thehotel. Majors, 205 A.2d at 876. The court dismissed this as a distinction without a difference. Id.

29. Section 483, Defense to Violation of Statute, states:The plaintiffs contributory negligence bars his recovery for the negligence of thedefendant consisting of the violation of a statute, unless the effect of the statute is to placethe entire responsibility for such harm as has occurred upon the defendant.

RESTATEMENT (SECOND) OF TORTS § 483 (1965).30. Thus, the court implicitly applied comment c. to section 483 which provides in pertinent

part:There are, however, exceptional statutes which are intended to place the entire

responsibility for the harm which has occurred upon the defendant. A statute may befound to have that purpose particularly where it is enacted in order to protect a certainclass of persons against their own inability to protect themselves. Thus a statute whichprohibits the sale of firearms to minors may be clearly intended, among other purposes,to protect them against their own inexperience, lack of judgment, and tendency towardnegligence, and to make the seller solely responsible for any harm to them resulting from

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is implemented in a civil suit, a member of the special class is not barredfrom recovery by their contributory negligence.31 The court determinedthat the legislature enacted section 4-493(1) to protect people when theyare visibly intoxicated.32 Since the plaintiff, Majors, was visiblyintoxicated when the hotel served him, the hotel was liable for theinjuries plaintiff received as a proximate result of his intoxication.33

Recently, a Pennsylvania trial court followed Majors and Schelinand ruled that the defense of contributory negligence is unavailable tolicensees sued under the theory of negligence per se. In Neal v. SunsetGrove, Inc. ,34 the court sustained the plaintiff's preliminary objectionsto the defendant's use of the contributory negligence35 defense.36

Relying on the holdings in Majors and Schelin, the court concluded thatthe plaintiff was not barred from recovery for injuries sustained as aresult of the defendant's violation of the Liquor Code. The plaintiffsown negligence was deemed irrelevant.37

Taverns in violation of the Liquor Code have been deemed to bestrictly liable to persons injured. They were prevented from asserting thenegligence of the patron to whom they served alcohol in violation of theLiquor Code. These rules changed in regard to minors, however, whenthe liability for service to minors in violation of the Liquor Codechanged.

the sale. In such a case the purpose of the statute would be defeated if the contributorynegligence of the minor were permitted to bar his [or her] recovery.

RESTATEMENT (SECOND) OF TORTS § 483 cmt. c (1965) (emphasis supplied).31. RESTATEMENT(SECOND) OF TORTS § 483 (1965). See also Majors, 205 A.2d at 876.32. Majors, 205 A.2d at 876. For discussion of the appropriateness of the court's placing

intoxicated people into the class of people the legislature intended to be protected from themselvesby § 4-493(1), see infra notes 141-151 and accompanying text.

33. Majors, 205 A.2d at 877-78.34. 1 Pa. D. & C.4th 294 (1988). In Neal, the plaintiffs filed a complaint alleging that the

defendant's employee served the plaintiff while he was visibly intoxicated and that the plaintiff wasinvolved in a serious accident as a result of his intoxication. Id. at 295.

35. The Neal court used the term contributory negligence but the case was commenced wellafter the adoption of comparative negligence in Pennsylvania in 1976. Other cases have appliedcomparative negligence and used the term contributory negligence. See, e.g., Congini by Conginiv. Porterville Valve Co. 470 A.2d 515 (Pa. 1983). For a discussion on the distinction betweencontributory negligence and comparative negligence see infra notes 67 and 78. For this distinction'srelevance to this Comment see infra notes 110-140 and accompanying text.

36. Neal, I Pa. D. & C.4th at 296-97. Under its new matter, the defendant also raised thedefense of assumption of the risk. Id. at 297. The court sustained plaintiffs preliminary objectionto this defense also, stating that a violation of section 4-493(1) is negligence per se, makingdefendant liable for injuries proximately caused by the violation. Id. at 297-99 (citing Connelly v.

Ziegler, 380 A.2d 902 (Pa. Super. Ct. 1977)). The court also applied the Restatement (Second) ofTorts section 496F which is considered to be analogous to section 483 regarding contributorynegligence. Id. at 298.

37. Id. at 296.

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C. The Change For Service To Minors

Licensee civil liability for the service of alcohol to minors changedin 1965,38 when the Pennsylvania legislature added section 4-49739 tothe Liquor Code.' Section 4-497 provides that no licensee shall beliable to a third person4' for damages sustained by a patron unless saidpatron was visibly intoxicated at the time of the sale.42 The addition ofsection 4-497 seemed to indicate that a tavern could not be held liable forserving alcohol to an unintoxicated minor. 3 Under the statute, a taverncould be held liable only for serving a visibly intoxicated person. 44

In Matthews v. Konieczny45 the Pennsylvania Supreme Court wentbeyond the rule set forth in the statute and held that as a matter ofcommon law commercial licensees can be held liable for serving anunintoxicated minor.' The Matthews court was presented with two

38. Jane Leopold-Leventhal, Pennsylvania Broadens Commercial Licensee Liquor Liability forthe Service of Alcoholic Beverages to Minors--Matthews v. Konieczny, 61 TEMP. LAW REV. 643,652 (1988).

39. Section 4-497 states:No licensee shall be liable to third persons on account of damages inflicted upon

them off the licensed premises by customers of the licensee unless the customer whoinflicts the damages was sold, furnished or given liquor or malt or brewed beverages bythe said licensee or his agent, servant or employee when the said customer was visiblyintoxicated.

PA. STAT. ANN. tit. 47, § 4-497 (Supp. 1993).40. Statutes of this type have been characterized as "anti-dramshop" acts. These acts seek to

exempt vendors from civil liability except under narrow circumstances. Julius F. Lang, Jr. & JohnJ. McGrath, Comment, Third Party Liability for Drunken Driving: When "One for the Road"Becomes One for the Courts, 29 VILL. L. REV. 1119, 1130-34 (1983-84). This can be seen asevidence of an interest in the legislature not to constrain business relations. Many times thesestatutes are reactions to the acts which were passed in an attempt to deter drunk driving.

41. This section applies only to situations where a third party is injured by a customer of thedefendant. See Simon v. Shirley, 409 A.2d 1365, 1366 n.5 (Pa. Super. Ct. 1979) (distinguishingConnelly v. Ziegler, 380 A.2d 902 (Pa. Super. Ct. 1977), on grounds that plaintiff in Connelly wasa customer of the defendant licensee as opposed to a third party).

42. PA. STAT. ANN. tit. 47, § 4-497 (Supp. 1993).43. Compare PA. STAT. ANN. tit. 47, § 4-497 (Supp. 1993) (which makes no mention of

minors), with PA. STAT. ANN. tit. 47, § 4-493 (Supp. 1993) (which includes minors).44. Compare Smith v. Evans, 219 A.2d 310 (Pa. 1966) with Smith v. Clark, 190 A.2d 441

(Pa. 1963). In Clark, the court found negligence per se in the service of alcohol to a minor, whilein Evans (decided after the adoption of section 4-497) the court specifically stated that the serviceof alcohol to a minor was not enough to establish liability. Evans, 219 A.2d at 311. The plaintiffmust prove that the purchaser was intoxicated at the time of purchase regardless of the patron's age.See id. See also Shirley, 409 A.2d at 1366-67 (commercial vendor's service of alcohol to anunintoxicated minor absolves the vender of liability for damages resulting from minor's subsequentintoxication); Peluso v. Walter, 483 A.2d 905, 907 (Pa. Super. Ct. 1984); Speicher v. Reda, 434A.2d 183, 185-86 (Pa. Super. Ct. 1981).

45. 527A.2d 508 (Pa. 1987).46. Id. at 510. For an evaluation of this change and the court's reasoning see Leopold-

Leventhal supra note 38, at 649. The author argues that the finding of liability for a licensee who

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cases in which a licensee had served a minor.47 In neither case did thecomplaint allege that the minor was visibly intoxicated at the time theypurchased the beer. In both cases the lower court had granted thedefendant's motion for summary judgment and the Superior Court hadaffirmed.'

The Supreme Court in Matthews overturned the lower courts anddetermined that a minor, as one who cannot legally purchase alcohol, isnot a "customer" within the meaning of section 4-497 of the LiquorCode. 49 Therefore, a licensee is not absolved from liability undersection 4-497 of the Liquor Code for serving an unintoxicated minor.The court stated that it was not the intent of the legislature to absolvelicensees from liability when they provide alcohol to a minor.5' Theviolation of the licensee arises out of the Liquor Code and the CrimesCode, 5 and the violating licensee is therefore negligent per se.52

has served an unintoxicated minor is incorrect. The author argues that the court goes against theclear legislative intent of section 4-497 in expanding social host liability to commercial vendors.According to the author, section 4-497 was enacted to absolve licensees from liability except in caseswhere the licensee served a visibly intoxicated adult. Furthermore, the author asserts, the findingof liability through the Crimes Code amounts to "manipulative statutory interpretation" and "judicialactivism" which violates the proper role of the courts. The author concludes that although there maybe social considerations which support the finding in Matthews, it is for the legislature and not thejudiciary to make decisions. Id.

An evaluation of the correctness of the decision in Matthews is beyond the scope of thiscomment.

47. In one case a group of minors had pooled their money and one minor had purchased a caseof beer from the defendant. Matthews, 527 A.2d at 510. After driving around while consumingthe beer the youths were involved in an accident in which one of the minors died. This minor'sestate sued, among others, the beer distributor who had sold the beer. Id.

In the other case, a minor had purchased beer from a distributor. Id. A second minor hadconsumed some of this beer and had been subsequently involved in an accident. Matthews, 527A.2d at 510. The minor was found to be legally intoxicated at the scene of the accident. Id. Theplaintiff, who had been injured in the accident, sued several defendants including the distributor forits sale of alcohol to a minor. Id.

48. Id. at 509-10.49. Id. at 512-13.50. Matthews, 527 A.2d at 513.51. 18 PA. CONS. STAT. ANN. § 6308 (Supp. 1993). Section 6308(a) of the Crimes Code

states:A person commits a summary offense if he, being less than 21 years of age,

attempts to purchase, purchases, consumes, possesses or knowingly and intentionallytransports any liquor or malt or brewed beverages ....

Id. Liability on the part of the supplier is found through accomplice culpability in 18 PA. CONS.STAT. ANN. § 306 (1983). Section 306 of the Crimes Code states in pertinent part:

(a) General Rule.--A person is guilty of an offense if it is committed by his ownconduct or by the conduct of another person for which he is legally accountable, or both.

(b) Conduct of another.--A person is legally accountable for the conduct of anotherperson when:

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In Matthews, the Supreme Court relied upon its prior reasoning inCongini v. Portersville Valve Co.53 In Congini, a social host was foundnegligent per se for serving a minor in violation of section 6308 of theCrimes Code54 where the minor wrecked his car while driving homefrom the company Christmas party. 55 The court found the defendant-employer liable for the injuries proximately resulting from the minor'sintoxication. It was acknowledged by the court that it was departingfrom established law for social hosts which found no liability for injuriesresulting from the service of intoxicants to guests.56

The court found that in enacting the Crimes Code the legislaturedetermined that persons under the age of twenty-one are incompetent tohandle alcohol. Therefore, a social host who serves a minor alcoholbreaches a statutory duty and is negligent per se. It was the legislativeintent that liability be imposed on anyone who serves a minor, wheresuch service results in injuries.57

(1) acting with the kind of culpability that is sufficient for the commission ofthe offense, he causes an innocent or irresponsible person to engage in suchconduct;

(2) he is made accountable for the conduct of such other-person by this titleor by the law defining the offense; or

(3) he is an accomplice of such other person in the commission of the offense.(c) Accomplice defined.--A person is an accomplice of another person in the

commission of an offense if:(1) with the intent of promoting or facilitating the commission of the offense,

he:(i) solicits such other person to commit it; or(ii) aids or agrees or attempts to aid such other person in planning or

committing it; or(2) his conduct is expressly declared by law to establish his complicity.

§ 306(a), (b) and (c).52. Matthews, 527 A.2d at 512 & n.4. The court notes that the intention of the General

Assembly in prohibiting the sale of alcohol to minors is to protect both minors and the public atlarge. Id. at 511.

53. 470 A.2d 515 (Pa. 1983). The Matthews court also affirmed Congini's holding the sameday it decided Matthews. In Omer v. Mallick 527 A.2d 521 (Pa. 1987), the court held that servingalcohol to any minor was a breach of duty. Matthews 527 A.2d at 510.

54. For the text of section 6308 see supra note 51.55. Congini, 470 A.2d at 516.56. Id. at 517. See supra note 11 for common law social host liability.57. Id. at 517-18. This thinking has been expanded subsequently. See, e.g., Ornerv. Mallick,

527 A.2d 521, 524 (Pa. 1987) (holding that a social host is negligent per se for serving "any"alcohol to a minor, "not just an amount sufficient to intoxicate the minor."); Herr v. Booten, 580A.2d 1115 (Pa. Super. Ct. 1990) (student for whom roommates purchased alcohol on day beforebirthday was not considered twenty-one for purposes of section 6308 of the Crimes Code andtherefore roommates were negligent per se); McGaha v. Matter, 528 A.2d 988 (Pa. Super. Ct. 1987)(The Superior Court, in applying Matthews, ruled that the trial court erred in determining that theplaintiff had no cause of action where complaint failed to aver that minor was visibly drunk whenhe purchased alcohol.).

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In Matthews, the court determined that what is true for a social hostis also true for a licensee under the Liquor Code." Serving alcohol toa minor constitutes a breach of duty whether it is done by a social hostor by a licensee. 9 According to the Pennsylvania Supreme Court, theCrimes Code manifests a clear legislative intent to protect minors and thegeneral public from the detrimental effects of a minor's consumption ofalcohol.' The violation of the Crimes Code by a licensee is negligenceper se 6' and upon a finding that a minor was served intoxicating liquor,the licensee involved is liable for injuries proximately caused by theminor's intoxication. 62

Despite the passage of section 4-497 of the Liquor Code, negligenceper se is found where a licensee serves an unintoxicated minor.63 Thecourt reasoned around the statute 4 and with this reasoning thetraditional rule regarding contributory negligence also changed.

D. Comparative Negligence Implications

The court in Congini stated that a social host could assert theminor's comparative negligence as a defense.6' The court stated thata cause of action in tort exists for an injured minor or a third partyagainst a social host who violates the Crimes Code by serving the minorintoxicants. The court also reasoned that a social host may assert aminor's contributory negligence as an affirmative defense.' The courtwent on to state that under Pennsylvania's Comparative Negligent Act,67

58. Matthews, 527 A.2d at 511.59. Id.60. Id. at 511 (citing Congini, 470 A.2d at 518).61. Matthews, 527 A.2d at 511; Congini, 470 A.2d at 518.62. Matthews, 527 A.2d at 511; Congini, 470 A.2d at 518. See also cases cited insupra note

57.63. See supra note 46 for evaluation of this finding.64. See supra notes 38-64 and accompanying text.65. Congini, 470 A.2d at 518.66. Id. "[Allthough we recognize that an eighteen year old minor may state a cause of action

against an adult social host who has knowingly served him intoxicants, the social host in turn mayassert as a defense the minor's 'contributory' negligence." Id.

67. 42 PA. CONS. STAT. ANN. § 7102 (1981). Section 7102 states in pertinent part:(a) General rule.--In all actions brought to recover damages for negligence resulting

in death or injury to person or property, the fact that the plaintiff may have been guiltyof contributory negligence shall not bar a recovery by the plaintiff or his legalrepresentative where such negligence was not greater than the causal negligence of thedefendant or defendants against whom recovery is sought, but any damages sustained bythe plaintiff shall be diminished in proportion to the amount of negligence attributed tothe plaintiff.

(b) Recovery against joint defendant; contribution.--Where recovery is allowedagainst more than one defendant, each defendant shall be liable for that proportion of the

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the fact finder must resolve whether the defendant's negligence wassufficient to allow recovery.6"

Not surprisingly, the reasoning in Congini regarding social hostswas adopted for commercial vendors as well. In Matthews, the SupremeCourt held that the liability found was not absolute or irrebuttable, butthat the defendant could attempt to establish the comparative negligenceof the actors involved.69

The court directly confronted the issue of comparative negligencein Barrie v. Pennsylvania Liquor Control Bd.7° The Barrie courtaffirmed the common pleas court's decision allowing the licensee toassert the defense of the comparative negligence on the part of the minorinjured plaintiff.7 ' In Barrie, a mother sued several defendants whowere involved with her minor son's consumption of alcohol on the nighther son drowned. One defendant, the state liquor store, had sold alcoholto the deceased's friend who was also a minor.' The trial courtapplied comparative negligence principles and found in favor of all of thedefendants .

On appeal, the Commonwealth Court dismissed the plaintiff'sassertion that Majors and Schelin controlled.74 Rather, the courtmaintained that the case was controlled by Matthews and Congini.5

The court attempted to distinguish Majors and Schelin by stating thatthose decisions did not hold the licensee strictly liable, but were actuallydrawing an inference that the illegal service was a substantial cause ofthe injury.76 The court concluded that it would be a nearlyinsurmountable burden for the plaintiff to have to prove which drinkcaused the harm.77

Furthermore, the court reasoned that the cases of Majors andSchelin, which had applied the Restatement (Second) of Torts section 483

total dollar amount awarded as damages in the ratio of the amount of his causalnegligence to the amount of causal negligence attributed to all defendants against whomrecovery is allowed. The plaintiff may recover the full amount of the allowed recoveryfrom any defendant against whom the plaintiff is not barred recovery. Any defendantwho is so compelled to pay more than his percentage share may seek contribution.

§ 7102(a) and (b). For discussion of this statute see infra note 78.68. Congini, 470 A.2d at 518-19.69. Matthews, 527 A.2d at 512.70. 586A.2d 1017 (Pa. Commw. Ct. 1991).71. Id. at 1019-20.72. Id. at 1018.73. Id. at 1019.74. Id. at 1020.75. Barriey. Pennsylvania Liquor Control Bd., 586 A.2d 1017, 1020 (Pa. Commw. Ct. 1991).76. Id.77. Id.

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and had disallowed the defense of contributory negligence to licensees,were decided prior to the adoption of comparative negligence inPennsylvania.7" The defense of contributory negligence completelybarred the plaintiff from recovery. Under the comparative negligencedefense, however, negligence and liability are apportioned according torelative fault. Therefore, the comparative negligence defense is not acomplete bar to the plaintiffs recovery.79

Therefore, the court concluded that, rather than establishing absoluteliability, the Majors and Schelin decisions disallowed the contributorynegligence defense based on a desire to allow the plaintiff to recover.'The implication from Matthews and Congini is that the adoption ofcomparative negligence in Pennsylvania compels a different result, forexample, admission of evidence of the plaintiffs own negligence.8

III. The Inconsistency

The current situation is inconsistent. If a tavern violates section 4-493(1) of the Liquor Code by serving a minor, it is deemed negligent perse and is liable for injuries sustained by the minor or a third partyproximately caused by the minor's consumption.' The tavern may,however, assert the comparative negligence of the minor and its liabilitymay be limited accordingly.' A tavern which violates section 4-493(1)of the Liquor Code by serving a visibly intoxicated customer is alsodeemed to be negligent per se and liable for injuries sustained by thepatron's intoxication.' Nevertheless, the Pennsylvania courts have not

78. Id. Comparative negligence was adopted by the Pennsylvania legislature in 1976. Act ofJuly 9, 1976, No. 152, 1976 Pa. Laws 855 (codified as amended at 42 PA. CONS. STAT. ANN.§ 7102 (1982 & Supp. 1993). For text of section 7102 see supra note 67. This is a departure fromthe previous law of contributory negligence which served as a complete bar to a plaintiff's claim.If a defendant could assert the negligence of the plaintiff, no matter how slight or minor in relationto the defendant's negligence in bringing about the resulting injury, the plaintiff would be unable torecover at all. The harshness of this rule precipitated the adoption by most jurisdictions ofcomparative negligence in varying degrees. For a complete discussion of contributory/comparativenegligence see Keeton, supra note 13, § 65, at 461.

Pennsylvania's comparative negligence law allows a plaintiff to recover as long as theirnegligence is not greater than the defendant(s). The defendant(s) are only liable for that percentageof the damages which they were negligent as to the plaintiff and other defendants. 42 PA. CONS.STAT. ANN § 7102 (1982 & Supp. 1993).

79. See 42 PA. CONS. STAT. ANN. § 7102 (1982 & Supp. 1993).80. Barrie, 586 A.2d at 1020.81. Id.82. See supra notes 38-64 and accompanying text. Liability here is also found under the

Crimes Code. See supra note 51. The violation is found to be negligence per se.83. See supra notes 65-81 and accompanying text.84. See supra notes 7-24 and accompanying text.

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allowed licensees to assert the defense of comparative negligence whentheir negligence per se is the service of alcohol to a visibly intoxicatedpatron."

This inconsistency is inappropriate; licensees should be permitted toassert the defense of comparative negligence regardless of the status ofthe individual to whom intoxicating beverages are served. This changemust take place for reasons of judicial integrity and social policy. Thischange is logical because comparative negligence is not a complete barto plaintiffs claim and because it is questionable whether section 4-493(1) should be considered an exceptional statute.

A. Judicial Integrity

Judicial integrity is a very important concept in Pennsylvanialaw.86 This doctrine requires that courts be predictable and that whenconfronted with the same fact scenarios, all courts will reach the sameoutcome.87 Courts should not apply the same law differently.

In dram shop suits, violations of "exceptional statutes," which areenacted to protect special classes of individuals,"8 are accordeddissimilar treatment. The courts have determined that when a licenseeviolates the laws of Pennsylvania by serving a minor or a visiblyintoxicated customer, he or she is negligent per se.89 The courts havefurther determined that these prohibitions were enacted by the GeneralAssembly to protect the intoxicated patron or the minor and the publicat large.' In Majors and Schelin the courts impliedly determined thatthese provisions met the Restatement's definition of "exceptional statute"and therefore did not allow the defendants to invoke the defense of

85. As noted earlier, the court in Neal v. Sunset Grove Inc., 1 Pa. D. & C.4th 294 (1988),confronted the issue of whether or not to allow the defense of contributory negligence to a tavernwhich had served a visibly intoxicated adult. The case came after the adoption of comparativenegligence. The Neal court held that Majors and Schelin controlled and therefore did not allow thetavern to assert this defense. Id. at 296-97.

86. This can be seen through Pennsylvania cases upholding the doctrine of stare decisis. SeeMonongahela Street Ry. v. Philadelphia Co., 39 A.2d 909, 915-16 (Pa. 1944), and cases citedtherein.

87. See Yudacufski v. Commonwealth of Pa. Dep't of Transp., 454 A.2d 923, 926-27 (Pa.1982).

88. See RESTATEMENT (SECOND) OF TORTS § 483 cmt. c (1965).89. See supra notes 7-24, 38-64 and accompanying text. Negligence per se for the service of

alcohol to visibly intoxicated adults is found solely on the violation of section 4-493(1) of the LiquorCode. Negligence per se for the service of alcohol to minors is found both through the Liquor Codeand the Crimes Code. See PA. STAT. ANN. tit. 47, § 4-493(1) and 18 PA. CONS. STAT. ANN.§§ 306 and 6308.

90. See Majors, 205 A.2d at 875-76; Matthews, 527 A.2d at 511.

DRAM SHOP SUITS

contributory negligence. 9' However, in Matthews and Barrie the courtsdid not apply the "exceptional statute" exception and allowed thelicensees to assert the affirmative defense of comparative negligence.'This outcome is inconsistent and the different application of the same lawviolates judicial integrity. This inconsistency must be remedied. ThePennsylvania courts should adopt comparative negligence as a defenseavailable to licensees when sued by a patron or third party injured as aresult of the licensee serving the patron while he or she was visiblyintoxicated.

B. Public Policy

Public policy also dictates that licensees should be permitted toassert the defense of comparative negligence. It is in society's bestinterest that persons be held responsible for their own actions. 9 Peoplewho drink to the point of intoxication should not be absolved completelyfrom the consequences of their actions. Moreover, such individualscertainly should not be able to have their injuries completelycompensated. The failure to hold people responsible for their ownactions when such actions cause injuries to themselves or otherseffectively condones the activity.

Pennsylvania courts have previously recognized the importance ofthis social policy. In Orner V. Mallick the Pennsylvania SupremeCourt acknowledged its departure from the "great weight of authority inthe United States" which it had previously followed' regarding socialhost liability.' The Orner court stated that under Congini thisabandonment of prior law was proper for minors.' The courtrecognized that the legislature was seeking to protect minors from their

91. See supra notes 25-33 and accompanying text. Lower courts have followed and notpermitted defendants to assert the defense of comparative negligence. See Neal v. Sunset GroveInc., 1 Pa. D. & C.4th 294 (1988).

92. See supra notes 69-78 and accompanying text.93. Some may argue that in the case of innocent third parties, it is unfair to apportion damages

where the defendant who was intoxicated is insolvent and the defendant tavern has the "deeppocket." Under Pennsylvania's comparative negligence statute, however, a plaintiff will still be fullycompensated in this case. The statute specifically states that in the situation of joint defendants, aplaintiff may recover his or her full damages from any one defendant and that defendant must seekcontribution from the other(s). 47 PA. CONS. STAT. ANN. § 7102(b) (1982). For text see supranote 67.

94. 527 A.2d 521 (Pa. 1987).95. See Klein v. Raysinger, 470 A.2d 507 (Pa. 1983) (refusing to hold social host liable for

injuries resulting from intoxication of guests).96. Id. at 523.97. Id.

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own indiscretion.9" Still, the court concluded, the reasoning under thecommon law which did not find liability for social hosts' furnishingliquor to guests was sound. The court stated that:

The consequences of accepting intoxicants were left to the personalresponsibility of the guest, and the host was not required to answerfor their effect. The adult ...who drank more than he shouldanswered alone to himself and to all others for whatever injuryfollowed his acceptance of intoxicants. 9

Although licensees are governed by the Liquor Code, individuals mustbe held responsible for their own conduct.

Other jurisdictions have also cited personal responsibility as a reasonfor allowing the defense of comparative negligence. In Del E. WebbCorp. v. Superior Court of Arizona"' the Supreme Court of Arizonaheld that society's interest in holding one personally responsible fordrinking to the point of intoxication was one reason for allowingdefendant taverns the defense of comparative negligence.'' The courtcites Congini as support for this proposition, stating that it is in the bestinterest of the public that most people be held responsible for theirconduct. 1" The court further limits its holding to the service ofalcohol to intoxicated adults. 3

In Lee v. Kiku Restaurant"' the Supreme Court of New Jerseyfurther espoused personal responsibility as a reason to allow a defendantthe defense of comparative negligence. The court stated that in allowingtaverns the defense of comparative negligence it was "stronglyinfluenced" by the public interest in deterring those who would create arisk to others by voluntarily drinking to the point of intoxication.15

The court recounted that the laws of New Jersey show that those whowillingly become intoxicated must be responsible for their ownconduct. '0

98. Id.99. Id.

100. 726 P.2d 580 (Ariz. 1986) (en bane).101. Id. at 586.102. Id.103. Id. The court did not reach the issue of whether the comparative negligence defense would

be applicable to cases where a minor is served. Id. n.8.104. 603 A.2d 503 (N.J. 1992).105. Id. at 509.106. Id. The court cited to its statutes and cases regarding New Jersey's drunk driving laws.

Id.

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This "personal responsibility" rationale was also applied by theColorado Supreme Court in Lyons v. Nasby.l° The court stated thatone who voluntarily drinks to the point of intoxication should at least bepartially responsible for their injuries." 8 The court went on to statethat to prevent a tavern from demonstrating comparative negliegnce onthe part of the plaintiff would be a departure from traditional tortprinciples."° Many jurisdictions, therefore, have accepted the publicpolicy rationale of holding one responsible for one's own actions injustifying the application of the comparative negligence defense.

IV. The Logical Justifications for Permitting the Use of ComparativeNegligence in Dram Shop Suits

A. The Comparative/Contributory Distinction

One argument in favor of allowing the use of the comparativenegligence defense by licensees sued under a theory of negligence per seis based upon the distinction between contributory negligence andcomparative negligence."0 Such a distinction has been espoused by thePennsylvania courts in decisions which permit a licensee to assert thedefense of comparative negligence when a minor was served andconsequently injured himself or herself or a third party."' It would beconsistent for the courts to apply this reasoning in cases involving theservice of alcohol to a visibly intoxicated customer." 2

In Matthews, the court did not specifically address why the defenseof comparative negligence would be available to the licensee. The courtsimply cited Congini and stated that a commercial licensee's liability toa third party for damages proximately caused by the service of alcoholwas not absolute or irrebuttable."' Therefore, the court permitted thelicensee to assert the comparative negligence of the actor(s)involved. " 4

107. 770 P.2d 1250 (Colo. 1989) (en banc).108. Id. at 1255.109. Id. at 1259.110. For a discussion of Pennsylvania's change to comparative negligence and the text of its

comparative negligence statute see supra notes 67, 78.111. See supra notes 65-81 and accompanying text.112. In Neal, see supra notes 34-36, the court of common pleas did not follow the reasoning

applied in Matthews and Barrie (see supra notes 69-81 and accompanying text) despite the fact thatit was decided after the passage of comparative negligence in Pennsylvania.

113. Matthews, 527 A.2d at 512.114. Id.

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When the common pleas court in Barrie confronted the issue ofcomparative negligence," 5 it drew an inference from Matthews. l l6

In Barrie the defendant attempted to assert the comparative negligenceof the plaintiff (a minor) who died after drinking with a minor to whomthe defendant had sold alcohol." 7 The court stated that although notaddressed specifically in Matthews or Congini, it is implied that theenactment of comparative negligence compelled a different result thanthat found in Majors and Schelin."18 The court further reasoned thatthe Majors and Schelin decisions, which barred the contributorynegligence defense, were based primarily, if not solely, on the fact thatpermitting the defense would act as a complete bar to the action." 9 Insuch a case, the court reasoned, the duty imposed by section 4-493(1) ofthe Liquor Code would become illusory. 20 Because comparativenegligence does not act as a complete bar to a plaintiff's claim, completeloss of a claim is no longer a problem and the court concluded that adifferent result was needed.' 2 '

In affirming the court of common pleas' decision in Barrie, thecommonwealth court agreed." The court labeled Matthews andCongini as cases decided under the comparative negligence law whileMajors and Schelin were decided under the old contributory negligencetheory." This distinction was paramount to the decision of the latercourts in allowing licensees (and social hosts) the defense of comparativenegligence. 24 The court concluded that the adoption of comparativenegligence had changed the law regarding the availability of this defenseto licensees where civil liability is alleged through the violation of theliquor laws."

115. Barrie v. Pennsylvania Liquor Control Bd., 5 D. & C.4th 174 (1990), aft'd, 586 A.2d1017 (Pa. Commw. Ct. 1991).

116. Id. at 181.117. Id. at 174-75, 178.118. Id. at 181.119. Id.120. Barrie, 5 D. & C.4th at 181.121. Id.122. Barrie v. Pennsylvania Liquor Control Bd., 586 A.2d 1017 (Pa. Commw. Ct. 1991).123. Id. at 1020.124. Id. (citing Matthews v. Konieczny, 527 A.2d 508 (Pa. 1987) and Congini v. Portersville

Valve Co., 470 A.2d 515 (Pa. 1983)).125. Id. The court also stated that earlier decisions did not actually hold the licensee strictly

liable. Id. The courts were really just drawing the inference that the illegal service was asubstantial cause of the injury because it would be an impossible burden for the plaintiff to meet ifhe or she had to prove which drink served to the intoxicated individual caused the harm. Id.

It logically follows that the court should apply these same conclusions if confronted with acase in which the violation by the licensee was serving a visibly intoxicated customer. It is likely

DRAM SHOP SUITS

Several jurisdictions which had held previously that the defense ofcontributory negligence was unavailable to servers of alcohol haveallowed the defense of comparative negligence. 21 The adoption ofcomparative negligence by the state controlled this result. The rationaleis that comparative negligence is not a complete bar to the plaintiff'sclaim and therefore does not nullify the liability of the server for theirnegligence. For example, California changed its law regarding allowabledefenses in Sagadin v. Ripper.27 The Sagadin court concluded thatbecause of the adoption of comparative negligence, providers of alcoholshould be permitted to assert the negligence of the plaintiff as adefense."2 The court reasoned that defendants who have violated astatute intended to protect the plaintiff against his or her own negligencewould not be completely absolved from liability under comparativenegligence. 29 The servers of alcohol, the court concluded, wereentitled to have the plaintiff's negligence apportioned under the principalsof comparative negligence. '30

Minnesota also began permitting commercial and social providersof alcohol to use the defense of comparative negligence even though ithad not allowed the same defendants the defense of contributorynegligence. The civil liability provision of Minnesota's dram shopstatute is governed by the comparative negligence statute.' 3' In

that the Pennsylvania Supreme Court, when afforded the appropriate opportunity, will follow itsdecisions in Mathews and Congini and allow a tavern to assert the comparative negligence of anadult patron who was served while visibly intoxicated.

126. Not all jurisdictions discontinued the exceptional statute exception to contributorynegligence with the adoption of comparative negligence. See, e.g., Loeb v. Rasmussen, 822 P.2d914, 917-19 (Alaska 1991) (court reverses jury's apportionment of damages stating that Alaska'scodifying comparative negligence did not change the exceptional statute exception and therefore thecourt was unwilling to consider a minor's contributory negligence); Slager v. HWA Corp., 435N.W.2d 349, 352-53 (Iowa 1989) (Supreme Court of Iowa affirms lower court's decision thatdefense of comparative fault does not apply in dram shop cases. The statute is intended to protectinnocent citizens and if the legislature wanted comparative negligence to apply to dram shop cases,it could have stated so explicitly when adopting comparative negligence.)

127. 221 Cal. Rptr. 675 (Cal. Ct. App. 1985) (social host was found liable for injuries sustainedas a result of serving a minor in violation of a statute).

128. Id. at 691-92.129. Id. at 677-78, 687-93. The court waffled on whether or not the statute prohibiting the

provision of alcohol to minors constituted an exceptional statute (one intended to protect the plaintifffrom his own negligence). See supra note 25. Even if this statute falls into the category ofexceptional statutes, the court concluded, the adoption of comparative negligence ended the need forthe "special class exception" which does not allow the defendant the contributory negligence defensedue to its complete bar on plaintiffs claim. Id. at 690-93. The court then added that plaintiffscontributory fault was always to be apportioned even in the case of exceptional statutes unless thelegislature expressly states otherwise. Id. at 692-93.

130. Id. at 693-94.131. See MINN. STAT. ANN. § 340A.801 (West 1990).

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Danielson v. Johnson' the court of appeals of Minnesota affirmed thejury's allocation of fault based on the percentage of each party'snegligence. 33 The court stated that it was proper to give to the jurythe question of contributory negligence. 3"

New Jersey also began allowing taverns the defense of comparativenegligence only after it had preempted its predecessor, contributorynegligence. In Lee v. Kiku Restaurant35 the New Jersey SupremeCourt affirmed the appellate court's reversal of the trial court's verdictbecause the jury had not been instructed on comparative negligence. 36

In so doing, the Supreme Court of New Jersey specifically expanded onan earlier decision allowing a limited comparative negligence defense' 37

and overturned an even earlier holding 38 which had prohibited thedefendant from asserting the plaintiffs negligence as a defense. 139 Thisprevious holding, the court reasoned, was adopted when contributorynegligence was a complete bar to a plaintiffs recovery. The courtconcluded that it was now appropriate to allow the defendant to assert thecomparative negligence defense since a plaintiff may recover even whenhe or she is also negligent."

B. The "Exceptional Statute" Finding

Courts in other jurisdictions have found that dram shop statutes donot meet the criteria of an "exceptional statute."' 41 Therefore, the"exceptional statute" exception which does not allow defendants to assertthe defense of contributory negligence should not be a factor in dramshop suits. This is especially true in relation to intoxicated patrons. 42

132. 366 N.W.2d 309 (Minn. Ct. App. 1985).133. Id. at 313-14.134. Id. at 313.135. 603A.2d 503 (N.J. 1992).136. Id. at 511.137. Buckley v. Estate of Pirolo, 500 A.2d 703 (N.J. 1985). Buckley held that a tavern could

reduce its liability upon demonstrating that the plaintiff had the capacity to appreciate the risk ofengaging in the activity which led to the plaintiff's injuries. Lee, 603 A.2d at 507. The taverncould not, however, assert the defense of comparative negligence where it had served a visiblyintoxicated patron and as a result of his intoxicated state the patron could not take self-protectivemeasures. Id.

138. Soronenv. Olde Milford Inn, Inc., 218 A.2d 630 (N.J. 1966) (superseded by statute asstated in Tose v. Greater Bay Hotel and Casino Inc., 819 F. Supp. 1312 (D.N.J. 1993)).

139. Lee, 603 A.2d at 509-11.140. Id.141. For discussion on "exceptional statutes" see supra note 30.142. Some jurisdictions with dram shop acts which hold taverns strictly liable do not allow an

action by a patron who drinks to the point of intoxication and becomes injured. See, e.g., Weeksv. Princeton's, 570 So. 2d 1232, 1233 (Ala. 1990); Jodelis v. Harris, 517 N.E.2d 1055, 1058 (Ill.

DRAM SHOP SUITS

Arizona disposed of the "exceptional statute" argument in dramshop cases in Del E. Webb Corp. v. Superior Court of Arizona."" TheWebb court allowed the defendant to raise the defenses of contributorynegligence and assumption of the risk.'" The court refused to term thestate's dram shop statute "exceptional." 45 The court refused to give"exceptional statute" status to the statute because no clear legislativeintent to bar these defenses existed. The court concluded that courtsshould not bar these defenses absent clear legislative intent to thecontrary.'4

The court gave four additional reasons why they would not termtheir dram shop statute "exceptional." First, a statute prohibiting thesale of alcohol to intoxicated patrons and minors appears to be primarilyintended to protect the general public. 147 Second, it is not in thepublic's best interest to impose absolute liability where no liabilitypreviously existed for selling liquor to "an able bodied person."' 48

Third, the adoption of comparative negligence now prohibits the actionfrom becoming barred so there can be no imposition of absolute liabilityanyway. 49 Fourth, it is good judicial policy to preserve defenses indram shop actions." ° The court here cites Congini and states that theinterests of the public are best served by the common law principals thatmake most people responsible for their own conduct. 5'

V. Conclusion

Under Pennsylvania dram shop law a licensee can be held liable forinjuries caused by violation of section 4-493(1) of the Liquor Code. 52

This liability is termed absolute. 5 3 Therefore, a plaintiff is onlyrequired to prove that the licensee violated section 4-493(1) and that thisviolation caused the plaintiff's damages.

There is an inconsistency in this dram shop law regarding availabledefenses. When a licensee's violation consists of serving a visiblyintoxicated customer, the licensee is not permitted to assert the

1987); Ciemierek v. Jim's Garage, 282 N.W.2d 396, 398 (Mich. Ct. App. 1979).143. 726 P.2d 580 (Ariz. 1986).144. See id. at 587.145. Id. at 583-84.146. Id. at 584.147. Id. at 585.148. Del E. Webb Corp. v. Superior Court of Arizona, 726 P.2d 580, 585 (Ariz. 1986).149. Id. at 586.150. Id.151. Id. These are all reasons Pennsylvania courts should consider.152. See supra notes 7-24 and accompanying text.153. See supra note 14 and accompanying text.

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comparative negligence defense." However, when the tavern'sviolation is serving a minor, the licensee is permitted to assert thedefense of comparative negligence.'

This inconsistency is untenable. First, it violates judicialintegrity. 5 6 Pennsylvania should follow its own precedent regardingthe defense of comparative negligence in cases in which the tavern serveda minor. The same reasons for allowing taverns the comparativenegligence defense when they have served a minor mandate a change inthe law regarding cases in which a tavern served a visibly intoxicatedcustomer. Second, it is in society's interest for people to be responsiblefor their own actions." 7 When patrons drink themselves to the pointof intoxication, they should not be absolved from liability for their actswhich injure others.

Third, the Pennsylvania courts gave the distinction betweencontributory negligence and comparative negligence as a reason forallowing taverns to assert the defense of comparative negligence. 58

Contributory negligence had completely barred a plaintiff from recovery.Comparative negligence merely limits recovery according to relevantfault. 1 9 Therefore, a different result is compelled now thatcomparative negligence has been adopted by the legislature. It isimportant to note that other jurisdictions began allowing taverns to assertthe comparative negligence of the minor or a visibly intoxicated customerafter the state changed from contributory negligence to comparativenegligence.160

Finally, it is questionable whether or not section 4-493(1) is an"exceptional statute." An "exceptional statute" is one which is intendedto protect a certain class of persons from themselves. 6 ' Pennsylvaniatermed section 4-493(1) of the Liquor Code an "exceptional statute." 62

The courts found that the legislature intended the statute to protect visiblyintoxicated patrons and minors from themselves.63 As otherjurisdictions have found, it seems more likely that dram shop acts were

154. See supra notes 7-37 and accompanying text.155. See supra notes 38-81 and accompanying text.156. See supra notes 86, 87 and accompanying text.157. See supra notes 94-110 and accompanying text.158. See supra notes 38-64 and accompanying text.159. See supra notes 110-140 and accompanying text.160. See supra notes 126-140 and accompanying text.161. See supra note 25 and accompanying text.162. See supra notes 25-33 and accompanying text.163. See supra notes 25-33 and accompanying text.

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intended to protect society from the intoxicated individual.'" It alsoseems more likely that the legislature would have intended to protect theminor from his or her own impropriety than the adult from his or herown impropriety.

The Pennsylvania Supreme Court has not yet confronted the issueof the availability of the comparative negligence defense in dram shopsuits where the tavern violated the Liquor Code by serving a visiblyintoxicated customer. 65 It may be that when the appropriate case doescome before the Supreme Court, or the Superior Court, the defense willbe allowed." The Pennsylvania courts should follow their owndecisions in cases where a tavern has served a minor. The courts ofPennsylvania should allow taverns to assert the comparative negligencedefense in all suits brought under section 4-493(1) of the Liquor Code.

Leonard H. MacPhee

164. See supra note 148 and accompanying text.165. The Supreme Court cases which did not allow contributory negligence were decided prior

to the adoption of comparative negligence. See, e.g., Majors v. Brodhead Hotel, 205 A.2d 873 (Pa.1965). Neal v. Sunset Grove Inc., 1 Pa. D. & C.4th 294 (1988) was decided after the adoption ofcomparative negligence but was heard in the court of common pleas.

166. The appropriate case would require the right fact scenario and a defendant willing to appeala lower court's order not allowing the defendant to assert the defense of comparative negligence.